Race for Immigration Reform May Face Hurdles in the House

How fast can a political issue go from third rail to full sail? We might find out with the push for immigration reform that appears to be gaining momentum in Congress.

A little more than a year ago, the possibility of passing legislation that would include a path to citizenship for America's estimated 11 million undocumented immigrants seemed remote, if not akin to political kryptonite. Now that very point is at the heart of intense conversations in Washington — and an elusive deal may finally be within reach.

A year ago, former Massachusetts Gov. Mitt Romney, who was maneuvering to outflank fellow contenders for the GOP presidential nomination, suggested "self-deportation" for illegal immigrants, a concept with inherent logistical challenges. He also vowed to veto the Dream Act, a proposal to allow certain immigrants who came to America as children to remain in the country legally.

Photos: Larry Luxner

A protest sign at an Arizona desert camp tries to raise awareness about Mexican migrants suffering from dehydration and other illnesses. In 2006, immigration reform sparked heated opposition across the country; today, however, a recent poll showed that nearly two-thirds of Americans favor giving illegal immigrants a chance to earn a pathway to citizenship.

But tough talk on immigration didn't work out well for Romney or for the Republican Party in the election. As the cliché goes, elections matter — and the Republicans know they have a demographic time bomb on their hands.

According to the Pew Hispanic Center, Hispanics will account for 40 percent of the growth in eligible U.S. voters between now and 2030, at which time 40 million Hispanics will be eligible to vote, up from 23.7 million now.

And even though Hispanics only comprised 10 percent of all U.S. voters in the 2012 contest, Republicans received a drubbing by this critical slice of the electorate. Their candidate claimed a mere 27 percent of Hispanic voters — down from the 33 percent Sen. John McCain (R-Ariz.) got in his 2008 presidential bid. Latino voters rejected Romney by a 3-1 majority over President Obama, as did Asian Americans. Both groups are among the fastest growing segments of the electorate, and an overwhelming majority of them have responded in polls that immigration reform is a key issue.

So it was no surprise that just days after the election, hangdog GOP leaders began singing a very different tune on immigration reform. Suddenly, Sen. Marco Rubio (R-Fla.), the charismatic, youthful son of Cuban-American immigrants, began sparkling like never before under an intense spotlight. He was thrust into the role of the party's intellectual leader, and potential savior, on immigration issues — and his name has already been floated as a favorite in the next presidential race (still four years away, mind you — a political lifetime).

Despite the dramatic shift in rhetoric, what is still murky is whether Congress can actually clinch a deal on immigration reform. Movement on the issue has taken different routes in the two chambers, and even within those bodies several parallel efforts are happening.

The most prominent negotiations have occurred among the bipartisan "gang of eight" in the Senate, which includes Rubio, McCain, Jeff Flake (R-Ariz.), Lindsey Graham (R-S.C.), Dick Durbin (D-Ill.), Robert Menendez (D-N.J.), Chuck Schumer (D-N.Y.) and Michael Bennet (D-Colo.).

McCain and Flake worked together on reform legislation during the Bush administration while Flake was a congressman. Each helped to introduce a bipartisan bill in their respective chamber, with McCain teaming with the late Sen. Ted Kennedy (D-Mass.) and Flake with longtime reform advocate Rep. Luis Gutierrez (D-Ill.).

In January, the gang revealed outlines for a broad plan and was expected to produce a bill the week of April 8. Time is of the essence. A protracted debate could erode public support and political will for reform. A March poll by the Brookings Institution and Public Religion Research Institute showed nearly two-thirds of Americans favor giving illegal immigrants a chance to eventually obtain citizenship.

According to news reports, the contours of a deal regarding the status of 11 million undocumented immigrants already in the country — the crux of any immigration law — are coming into shape.

Among the possible requirements: Illegal immigrants would have to register with the Homeland Security Department, file federal income taxes for the time they've been in the country, pay a fine, and have a clean criminal record. Once given probationary legal status, the immigrants could work but would not be eligible for federal benefits such as food stamps and Medicaid — and they would need to wait in line for a green card, possibly a decade or longer.

The conditions track roughly with President Obama's proposal of "earned" citizenship. An even bigger sticking point was increasing visas for high- and lower-skilled workers, a thorny issue that pitted big business against labor unions. Companies in Silicon Valley, for instance, wanted more H1B visas for science and technology workers, while other businesses are looking to hire immigrants for lower-skilled agriculture, construction and restaurants jobs. But labor groups warned against giving away jobs that Americans could fill, especially in a weak economy. Unions also wanted basic legal protections for immigrant laborers.

After months of back and forth, however, the U.S. Chamber of Commerce and AFL-CIO announced that they had hammered out a compromise, which includes the possibility of a sliding scale that would raise or limit the number of visas based on economic conditions. Immigration reform advocates breathed a deep sigh of relief that business and labor had finally come to an agreement, because divisions over a "guest worker" provision for lower-skilled workers are precisely what scuttled talks in 2007.

Interestingly, a bipartisan compromise was reached in 2006 when the Senate, controlled by Democrats, approved the Comprehensive Immigration Reform Act, a bill that featured tougher border security and a pathway to citizenship.

But it could not be signed into law because when it was sent to a conference committee — the process by which bills in the House and Senate are merged — the House's corresponding legislation was too far apart from what the Senate had produced. (The House bill contained strict new regulations that were fiercely opposed by immigrant-rights groups.)

Business and labor groups are trying to hammer out a compromise over visas for both high- and lower-skilled workers in any immigration reform legislation.

In fact, that's the missing element in the current debate: the House, which in the last two years has derailed bipartisan legislation on everything from budget accords to international treaties. Its role in immigration has largely flown under the radar — so far. But if the Democratic-controlled Senate musters enough support to pass a bill, the make-or-break moment for immigration reform could occur in the Republican-controlled House. The House could even surprise many and release its own bill first. And then it wouldn't be GOP celebrities like Rubio who'd be the crucial players, but rather lesser-known names like Bob Goodlatte and Raúl Labrador.

Yet despite the feverish work in the Senate, House Republicans may be cooler to the idea of immigration reform. One reason why is the structural differences between the two chambers, whereby senators almost always represent much larger populations and areas of land. That means their states are more likely to have significant populations of Hispanics or groups sympathetic to immigrants. House Representatives are focused on smaller districts, which may not include many immigrants. This phenomenon is particularly acute in Republican-held districts, where the average Hispanic share of the constituency is just 11 percent.

In fact, many Republican-held districts are disproportionately dominated by white conservatives, who, as a group, have a less favorable view of immigration reform — in particular pathways to citizenship. National Journal, which has written a series of articles looking at how America's changing demographics are affecting politics, detailed in January how 111 of 233 House Republicans still represent districts that are more than 80 percent white. Part of this can be attributed to recent redistricting efforts, which have further homogenized — and polarized — House districts. States, on the other hand, can't be easily redrawn and are becoming increasingly diverse.

In contrast, with the rise of the tea party, some Republican districts have become increasingly conservative — with voters who may not reward moderation or compromise with Democrats, and might be more than happy to toss out a representative for voting in favor of any immigration bill.

That's why for members of the House, all politics really is local. National, or even state opinion polls can diverge sharply from local sentiment, and representatives have a vastly different political calculus than their Senate counterparts. Given this, it's not surprising that immigration efforts appear to be moving at a faster clip in the Senate.

William Frey, a scholar at the Brookings Institution who has studied the intersection of demographic trends and politics, told The Diplomat that senators tend to be less "microfactionalized" than representatives. However, he also said that many House Republicans have adjusted "attitudinally" to the new political realities of the country's morphing demographics and what this means for their party.

The House has waded into the issue of immigration, albeit more quietly than the Senate. Public hearings have been held by the House Judiciary Committee, which is chaired by Rep. Bob Goodlatte (R-Va.), a former immigration lawyer for 13 years.

Immigration reform groups have been guardedly optimistic that the tone of those hearings has been far less heated than in the past.

"I think that Chairman Goodlatte is engaging in an intellectually honest process to arrive at a position on immigration reform, but also bringing his colleagues along with him," Ali Noorani, executive director of the National Immigration Forum, recently told ABC News/Univision.

Yet Goodlatte, who's also received high marks from staunchly anti-immigrant groups, has ruled out citizenship for illegal immigrants, though he's open to offering some type of legal status.

But that's not a minor distinction — Democrats and reform groups say citizenship, even if it's years away, must be at the heart of any immigration bill. For many House conservatives, however, citizenship conjures the reviled "amnesty" association, which could doom any chances for a bill.

So just like in 2006, the Senate seems set to produce legislation that would include a citizenship component while even the proclaimed moderates among House Republicans, such as Goodlatte and Rep. Raúl Labrador (R-Idaho), have repeatedly denounced that option.

Is there room for middle ground? It's not out of the question. One option the Senate is reportedly mulling that might provide political cover for House Republicans is emphasizing long wait times for green cards — and then eventual citizenship — and beefed-up border security to sidestep the issue of amnesty.

And just like in the Senate, a group of House liberals and conservatives have been working behind closed doors to craft immigration legislation. In February, Rep. Mario Diaz-Balart (R-Fla.) told the Hill newspaper that the group is making "incredible progress" on legislation. "I am now more sure than ever that we're going to have a bipartisan bill," the longtime reform advocate said, although he stressed there is no timetable for action.

Yet even if an immigration bill emerges from the dust, there's another significant obstacle to passage.

Since taking over the gavel in 2011, House Speaker John Boehner (R-Ohio) has hewed closely to the "Hastert rule," which says no bill will be put up for a vote in his Republican-led chamber unless the "majority of the majority" supports it. This means that unless more than half of the 232 House Republicans back an immigration bill, it will not be brought to the floor, effectively killing it.

But Boehner has on several occasions broken the Hastert rule, allowing votes on the "fiscal cliff" deal, the Hurricane Sandy relief bill and the Violence Against Women Act even though most Republicans opposed it. The legislation was then able to pass with support from House Democrats.

Since those votes, however, Boehner has come under growing pressure by Republicans to adhere to the Hastert rule. Still, others who have had their eyes fixed on immigration, such as Mary Giovagnoli, director of the pro-reform Immigration Policy Center, say there are various other procedural tactics Boehner can use to push through controversial legislation.

One possibility is that Boehner could introduce a series of related bills that would be voted on in quick succession and then sent together as a package to the conference committee, where it could be reconciled with whatever the Senate produces.

In this piecemeal approach, each separate House bill would cover a different part of "comprehensive immigration reform" such as border security or a path to citizenship. A border security bill would almost certainly receive an overwhelming endorsement from the Republican majority; citizenship might not. In that case, Boehner could suspend the Hastert rule just for that specific vote.

In this way, the overall package could progress to a final bill that is signed into law while still de facto observing the Hastert rule and providing cover to Republicans in districts where support for citizenship might open them up to primary challenges.

Alfonso Aguilar, a GOP strategist at the Latino Partnership for Conservative Principles, and other insiders point out that immigration reform has become so important for both parties in both the House and Senate that a consensus — including a majority of the majorities and the minorities — can still be had and no rules will need bending.

"The Republicans really want to neutralize this issue," Aguilar told The Diplomat.

That means one way or another, immigration reform may finally have its day in Congress — sooner rather than later.

About the Author

Luke Jerod Kummer is a contributing writer for The Washington Diplomat.